SUMMARY ASSESSMENT OF COSTS: ANOTHER EXAMPLE: SAY IT WITH FLOWERS

We have looked, several times, at judgments which contain summary assessment of costs. Not least to get a flavour of the approach of the courts. An assessment took place by Mr Justice Birss in Interflora -v- Marks & Spencer PLC [2014] EWHC 4168 Ch where the recoverable costs were reduced from £100,000 to £65,000.

THE CASE

The action concerned Marks & Spencer purchasing the adword “interflora” so it came up as a sponsored site after a Google search. The case had been to the Court of Justice of the European Union and the Court of Appeal on several occasions. The claimant succeeded at trial, however that judgment was overturned by the Court of Appeal and a retrial ordered. All the injunctions restraining Marks & Spencers were discharged. The claimant applied for a further injunction restraining Marks & Spencer, this was refused by the judge.

THE JUDGMENT ON COSTS

COSTS

The first question I have to decide is what to do about the costs. The defendant, who has been the successful party in relation to this application for interim injunction pending trial, submits I should make an order for costs in its favour. The claimant, who was the unsuccessful party, submits that since the decision was based not on the merits of the underlying proceedings but on the balance of convenience, the balance of justice, it would be fair and appropriate (and indeed is done in other cases) to reserve the costs over to trial.

While I see some attraction in Mr. Silverleaf’s submission, I find that this is a case in which the normal rule should apply. It is an application which is freestanding and which the party who brought it failed and there is no reason why I should depart from the normal rule, which is that the unsuccessful party should pay the successful party’s costs. That is what I will do.

The next matter is about a significant part of the costs which are included in the cost statement. Although they relate in some ways to the application, they are better characterised as being costs relative to the argument about breach of confidence which has been mentioned in my judgment given this afternoon.

I am told that it accounts for approximately 33%, one-third, of the defendant’s costs. That seems like a realistic proportion. I accept Mr. Silverleaf’s submission that the right way to deal with those is not to make an order for costs relating to them. I am going to do so on the footing that they are better characterised as costs relative to an alleged breach of confidence, than they are as costs of this application. The best time to deal with those costs will be at the further hearing, which is inevitable in this case and is essentially a case management conference to decide how to manage this case over to a retrial. As Mr. Silverleaf rightly says, the judge in that hearing will be faced with the issue of breach of confidence and will have to decide how to deal with it in whatever form it has taken by the time it gets to that judge. Although I have been the judge dealing with the case today and at the previous hearing on the application, nevertheless that judge will also be seized of the breach of confidence issue and they will be well able to deal with those costs.

I gather Mr. Silverleaf and I think Miss Himsworth suggested that it would be a good thing if I was the judge hearing the CMC, I am not going to say anything about that. It is a matter for Chancery Listing and liaison between that office and the parties.

That means the costs I have awarded today are the two-thirds of the actual costs of the application from the defendant’s point of view. The defendant’s bill comes to a total of £152,185.60. Two-thirds of that is just over £100,000.

Mr. Silverleaf submits that bearing in mind this was essentially listed as a one-day hearing, that is a very substantial sum and he submits that I should, on a summary assessment, reduce it substantially. Miss Himsworth reminds me that this is an important matter for her clients. It involved two significant hearings before the court, one on the 18th or 19th November giving directions over the hearing and this hearing which began yesterday, finished this morning and had judgment this afternoon. While Miss Himsworth is right about that, nevertheless £100,000 for what is an important but comparatively straightforward application for an interim injunction is quite a high sum.

Looking at the rates: those charged by the fee earners at the solicitors’ firm do not seem to me to be unreasonable for this sort of intellectual property case and I infer that the explanation for the total is the time spent by various individuals, that is to say counsel and the solicitors. I appreciate I do not have an hourly rate for counsel, but I do not see that counsel are in a different position from the solicitors.

Doing the best I can with this information and bearing in mind that it is necessarily approximate, I will summarily assess the costs starting from a sum of about £100,000 for this application in the sum of £65,000. That is the sum I will award.